May/June '01 Issue
MSBA Home Page
at the time of publication. --Ed.
-- Steven J. Kirsch
Search and Seizure: Automobile Stop: Anonymous Tip.
Dispatch sent out an "attempt to locate" for a car
traveling on Highway 12 in the Willmar-Atwater area. The car
was reported to be driving "all over the road." The
car was further described as a red Plymouth, and its license
plate number was given. The dispatch did not include any information
about the identity of the reporting motorist and it is unknown
whether state patrol received this identity when the information
was originally phoned in.
-- Frederic Bruno, Esq.
Annuities. The Health Care Financing Administration (HCFA) has amended the State Medicaid Manual at Section 3810 to permit recovery from annuities that are the property of the deceased Medicaid beneficiary. In order to begin recovery, the state must have an expanded definition of an estate and must meet applicable notice and due process requirements.
Pre-Conservatorship Deed Voided. A district court may void a transaction entered into by a conservatee during the two years before establishment of a conservatorship if the court finds the conservatee was incompetent at the time. Minn. Sat. ¤ 525.56, subd. 5 (2000). The court ordered appellant to sign a Quit Claim Deed conveying his interest in the homestead back to his mother, the conservatee. Appellant executed the deed, but one day later obtained another deed from his mother. The district court found the son to be in contempt of court, and the Court of Appeals affirmed. Meireles, as Conservator of the Estate and Person of Tamasy v. Tamasy, C8-00-1532, 2001 WL 267466 (March 20, 2001).
-- Tonya Zdon Gabbard
Whistleblower Act.Continuing a trend of rulings of
adverse to workplace whistleblowers, the Minnesota Court of Appeals
recently reversed a large jury verdict in favor of a public sector
employee under the Whistleblower Act, Minn. Stat. ¤ 181.932.
In Cokley v. City of Otsego, 623 N.W.2d 625 (March
6, 2001), an employee's complaints about overtime wage requirements,
safety features, and the contractual status of a building inspector
were not actionable under the statute because they were not sufficiently
specific, did not reflect actual violations of law, or were already
known by management. Therefore, they did not satisfy the statutory
requirement of "good faith" reports to management about
illegalities in the workplace.
-- Marshall Tanick
Federal Wetland Jurisdiction. The EPA/Army Corps of
Engineers' "Tulloch Rule," which expands the definition
of "discharge of dredged material," became effective
on April 17, 2001, after being delayed for 60 days. "Further
Revisions to the Clean Water Act Regulatory Definition of 'Discharge
of Dredged Material': Delay of Effective Date" 66 Fed.
Reg. 10,367 (2001) (to be codified at 33 C.F.R. ¤
323.2 and 40 C.F.R. ¤ 232.2).
Retroactive Application of CERCLA. Retroactive application
of CERCLA to recover cleanup costs from responsible parties does
not violate either the Due Process or Takings clause of the United
States Constitution. Franklin County Convention Facilities
Authority v. Amer. Premier Underwriters, Inc., 240 F.3d
534 (6th Cir. 2001).
-- Robert F. Devolve
Child Support. The physical custody of the three children
was awarded to the mother in the decree, which ordered the father
to pay child support. Four years later, physical custody was
changed to the father, who was ordered to pay child support to
the mother. One year later, he petitioned for termination of
his child support obligation and to be granted the dependency
exemptions for his children. Both requests were denied. The Court
of Appeals approved the order, subject to remand of the mother's
income determination and the award of the dependency exemptions.
The Supreme Court found that the heart of the appeal is whether
Minnesota's child support scheme has been properly applied.
-- Hon. Eugene L. Kubes
-- Josh Jacobson
General Releases. Two federal appellate courts, construing
releases used in two intellectual property lawsuits, have held
that broad prospective language of general releases can broadly
preclude enforcement of future rights relating to the subject
matter of the lawsuit. The courts made clear that the releasing
party must carve out any intent to assert against the released
party potential claims relating to the subject matter of the
lawsuit that were known or should have been known. This is true
whether such claims existed at the time of the release or not.
-- Anthony R. Zeuli
Parol Evidence Admissible. Decedent's will left "the
sum of Two Hundred Thousand Dollars ($25,000)" to a beneficiary.
The Court of Appeals determined that the scrivener's testimony
would be allowed to resolve the contradictory provisions in the
will. The court criticized the historical distinction between
patent and latent ambiguities, and found nothing in Minnesota
law prohibiting evidence of a testator's intent. Instead, the
court imposed two limitations on the evidence. First, the surrounding
circumstances must be examined, and if the ambiguity or contradiction
persists, then the court may consider direct evidence of the
testator's intent. Second, extrinsic evidence may only be used
to determine what was meant by the words used, and not to determine
an intent that cannot be found in the words. In re: Estate
of Cole, C4-00-1172, 621 N.W.2d 816 (Minn. App. 2001)
(filed February 13, 2001).
-- Tonya Zdon Gabbard
Watershed Law. Watershed District hired a contractor
to improve an existing ditch that had fallen into disrepair.
The ditch was designed to withstand a ten-year event. After heavy
rainfall, the ditch overflowed causing property damage. Wear
sued the Watershed District on the theory that it negligently
improved the ditch. After a bench trial, the district court ruled
in favor of the Watershed District. On appeal, the Court of Appeals
affirmed, holding that the Watershed District did not breach
its duty to improve a ditch by constructing it to withstand a
ten-year event. By doing so, it rejected Wear's argument that
the purpose of the construction was to prevent all crop loss.
Wear v. Buffalo-Red River Watershed District C0-00-908,
621 N.W.2d 811 (Minn. App. 2001) (filed Feb. 13, 2001).
-- Chris Dietzen
Back Pay. The United States Supreme Court holds that
back pay resulting from a settlement of grievances concerning
free agency rights was attributed to the year it was actually
paid. Although a different interpretation applied in the context
of social security benefits, back wages paid by respondent were
attributable to the year in which they were actually paid for
purposes of respondent's employer tax. Accordingly, the judgment
of the 6th Circuit is reversed. United States v. Cleveland
Indians Baseball Co., 00-203, U.S. Supreme Court, 2001
U.S. LEXIS 3203, April 17, 2001.
Late Returns; "Mailbox Rule" Exception. Chief
Counsel Notice CC-2001-019 announces a change in the IRS's litigation
position with respect to the application of the mailbox rule
exception to refund claims made on original income tax returns
that are filed late. The mailbox rule will treat claims for refunds
included on delinquent original returns as filed on the date
of mailing. Also included are returns such as Form 1120, Corporate
Income Tax Return, Form 720, Quarter Federal Excise Return, Form
2290, Heavy Vehicle Use Tax Return and Form 706 U.S. Estate Tax
Return. The change in litigation position is reflected in Reg.
Sec. 301.7502-1(f). 2001 TAXDAY, 3/26/01.
Homestead Refund Claims. Effective August 1, 2001,
a Minnesota real property tax homestead refund claim under the
Property Tax Refund Act is not allowed if taxpayer files the
initial claim more than one year after the original due date.
2001 TAXDAY, 4/10/01.
Priority Guidance List. The 2001 Priority Guidance
List indicates tax regulations and other administrative guidance
that the government expects to publish by year-end. 2001 TNT
82-1, April 26, 2001.
-- Kathryn J. Sedo
Dog Owner Liability. Kent agreed to feed, water, and
exercise Block's dog while Block went on a one-week vacation.
On the first day of the vacation, Kent walked the dog with a
leash, the dog bolted, and pulled Kent's shoulder out of joint.
--Thomas C. Baudler